The boards' duty of impartiality in inter partes proceedings 

In T 1072/93 the board held that the freedom of the board to offer specific advice to one of the parties as to how an objection might be overcome, even when such an objection stemmed from the board itself, was severely limited, especially in inter partes proceedings where the preservation of judicial impartiality was a paramount requirement. In T 253/95, the same board confirmed that boards of appeal in inter partes proceedings must be strictly impartial and found that alerting a party to a possible argument against him and on a ground on which the burden of proof rested on him, in advance of the oral proceedings, would amount to a clear violation of the principle of impartiality, irrespective of the fact that the communication setting out such an argument would also be sent to the other party. In T 394/03 the board held that, even though the opposition division's decision to reject the opposition had been annulled, it was not necessary, in the absence of a request, to give the patentee and respondent another opportunity to comment, nor, given the impartiality of the board, was there any requirement on principle to do so. Following T 394/03, the board in T 902/04 having regard to procedural economy, the principle of party disposition and the requirement for judicial impartiality in inter partes proceedings, found it appropriate to decide the case. Since the opponent's request was allowed, there was no need to hold the oral proceedings which only the opponent had requested on a purely auxiliary basis.

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